September 23, 2004
Ms. Haley Haynes Montgomery Deputy Secretary of State
N.C. Department of the Secretary of State Post Office Box 29622 Raleigh, N.C. 27626-0622
Subject: Advisory Opinion; Notary Public commission and effective date of the oath;
N.C. Gen. Stat. §§ 10A-3, 10A-8, 11-7, and 11-11
Dear Ms. Montgomery:
You inquired whether it was legal for a notary public to take the oath of office prior to the effective date of his or her commission.1 You stated that this is not a problem for initial appointees since they receive the transmittal letter after their commission’s effective date. However, you note that the problem occurs with the reappointment of a notary public because the reappointed notary, upon receipt of the transmittal letter,2 may go to the appropriate Register of Deeds to take the oath of office prior to the effective date of the new commission. It is our opinion that, as the law is currently written, a notary may take the oath of office anytime “within 90 days of commissioning . . ..” N.C. Gen. Stat. §10A-8. There is no requirement that a notary seeking recommissioning take the oath after the commission date. See N.C. Gen. Stat. §10A-6.
It appears that the confusion has arisen due to conflicts between the current statute, N.C. Gen. Stat. § 10A-8, Oath of office, and a 1965 “Notary Public Guidebook” published by the Institute of Government. Relying upon the 24 April 1939 Institute of Government Special Bulletin, Recent Attorney General’s Rulings Affecting Powers and Duties of City and County
1 “Commission” is defined at N.C. Gen. Stat. §10A-3(2) as the written authority to perform a notarial act.
2 The “transmittal letter” is a three part form. The Notary Division sends two parts of the form to the applicable Register of Deeds and one part to the notary public notifying him or her of the disposition of commission. See also 18 NCAC 07.0204.
Ms. Haley H. Montgomery September 23, 2004 Page 2
Officials, that Guidebook states “[t]he appointee must qualify by taking the oath of office before that clerk and he may not so qualify until the effective date of the commission.” However, the 1965 Guidebook is no longer current3 because in 1991 the North Carolina General Assembly enacted the Notary Public Act, Chapter 10A of the General Statutes. Under current law, there is no statutory mandate as to when the notary public appointee or re-appointee must take the required oath. North Carolina General Statutes § 10A-8 only requires the appointee to become qualified by taking the oath before the register of deeds “within 90 days of commissioning.”
N.C. General Statutes § 10A-8, Oath of office, references two additional statutes, N.C. Gen. Stat. §11-7, Oath or affirmation to support Constitutions; all officers to take, and N.C. Gen. Stat. §1111, Oaths of sundry persons; forms. N.C. General Statutes § 11-7 sets out the oath required of every member of the General Assembly and every person elected or appointed to an office in the State. That oath is administered to the person “before taking office or entering upon the execution of the office . . .. ” N.C. General Statutes § 11-11 sets out the “General Oath” required of notaries public.
Currently, the General Assembly authorizes a notary public to take the oath of office anytime within ninety days of the date of the notary public commission.
Sincerely,
Reginald L. Watkins Senior Deputy Attorney General
Jill F. Cramer Assistant Attorney General
3Note that the most current Guidebook, Eighth Ed. (2000), does not include this quote.